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Powell v. Ramain

United States District Court, E.D. California

April 5, 2018

TOMMIE LEE POWELL, Plaintiff,
v.
S. RAMAIN, et al., Defendants.

          FIRST SCREENING ORDER ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM, WITH LEAVE TO AMEND (ECF NO. 1.) THIRTY DAY DEADLINE TO FILE AMENDED COMPLAINT

          GARY S. AUSTIN, UNITED STATES MAGISTRATE JUDGE

         I. BACKGROUND

         Tommie Lee Powell (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On April 12, 2017, Plaintiff filed the Complaint commencing this action, which is now before the court for screening. (ECF No. 1.)

         II. SCREENING REQUIREMENT

         The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious, ” that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that the action or appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

         A complaint is required to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)). While a plaintiff's allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal 556 U.S. at 678. While factual allegations are accepted as true, legal conclusions are not. Id.

         To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Id.

         III. SUMMARY OF COMPLAINT

         Plaintiff is presently incarcerated at the California Institution for Men in Chino, California. The events at issue in the Complaint allegedly occurred when Plaintiff was incarcerated at Avenal State Prison in Avenal, California, in the custody of the California Department of Corrections and Rehabilitation. Plaintiff names as defendants Dr. S. Ramain, Dr. Mahmud, Dr. Dabw, Dr. B. Brees, Dr. Huynh, PCP J. Telemece, and PCP J. Melarth (collectively “Defendants”). Plaintiff's factual allegations follow.

         Plaintiff alleges that Dr. Rahimifar[1] stated that Plaintiff had a pinched nerve in his back, and they gave Plaintiff Tylenol for pain for two to three months. After Plaintiff was unable to walk and lost fifty pounds he was sent to Bakersfield Mercy Hospital where they gave him an MRI, found that he had Valley Fever, and immediately operated. They removed half a rib and half a lung, and placed a metal rod in his back. Now Plaintiff has arthritis in both knees and believes he will walk with a cane the rest of his life. Due to Dr. Rahimifar's misdiagnosis, Plaintiff is now disabled for life. He also suffers from back pain that he describes as level “8 to 10” on average. Plaintiff also alleges that defendant PCP Melarth stated numerous times that Plaintiff had a pinched nerve his back. Defendant Melarth caused Plaintiff undue pain and suffering.

         Plaintiff seeks monetary damages.

         IV. PLAINTIFF'S CLAIMS

         The Civil Rights Act under which this action was filed provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party ...

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